Toleration in America

What is toleration? Two recent news items bring the question into high relief and reveal that Americans are divided about toleration itself. One is from the National Hockey League: “Philadelphia Flyers defenseman Ivan Provorov refused to wear a rainbow jersey during warm-ups for the team’s Pride Night for LGBTQ inclusion on Tuesday, citing his religious beliefs.” Meanwhile, in Colorado, the state’s crusade against Masterpiece Cake Shop owner Jack Phillips continues. He recently lost his latest appeal in state court, and the state is primed to force him to bake a cake celebrating a “gender transition.”

On the NHL Network, an analyst suggested that Provorov go back to Russia if that’s his attitude toward Gay Pride. Meanwhile, although Phillips has won several cases on appeal, he keeps being sued. He will probably appeal to the US Supreme Court again—where he has prevailed before. And, as for Provorov, apparently, his jerseys are flying off the shelves.

Note that neither Phillips nor Provorov is going out and preaching hatred or violence against homosexuals or transgender men and women. They are simply asking not to be required to affirm a particular point of view. That refusal is, per our official civil rights enforcement ideology, itself a form of bigotry and discrimination. But that is not the only way to see it.

There are, of course, genuine bigots in America. And many want to make that the issue because it simplifies things. But there is a deeper issue. How can America accommodate the diversity of moral opinions we currently have? In light of that question, we see that we have two warring views of respect for diversity and of toleration. The first is supported by the legal enforcement bureaucracy, as in the Jack Phillips cases, and is reflected in the criticism of Provorov. That view holds that to be tolerant is to give explicit support to particular points of view.

Provorov did not explicitly criticize gay pride. On the contrary, his claim was that he is an Orthodox Christian, and as such, he cannot in good conscience actively support homosexuality because his religion teaches that it is sinful. He does not seek to keep gay players out of the NHL, nor has he, as far as I know, made it a point to preach his beliefs to others. He merely asks not to be required to praise something with which he disagrees. The same is true of Jack Phillips. He makes specialty cakes. He is willing to provide a cake for anyone. But he refuses to make a specialty cake with a particular message that celebrates something contrary to his beliefs.

In other words, Phillips and Provorov, and their supporters, are embracing a rival understanding of toleration—namely, that it is a practice, not a particular belief. To be tolerant reflects the classic idea of magnanimity, embracing what used to be called “liberality,” and accepting the notion that there are different ways of living well, and that a free society must give people space truly to live as their consciences dictate. Such liberality requires that civil society provide space for people to live separately in some regard, including in a private business.

In former ages, that sort of toleration applied particularly to America’s diverse religious sects. In a world in which many Protestants regarded the Pope as the Anti-Christ, religious liberty meant allowing America’s many religious communities the space they needed to live freely, even if they hated each other. It did not require, as the British King had required, one affirms Anglican doctrine to be a full citizen, nor did it require, as the King of France had required, one to be a Catholic. Instead, America merely required that a citizen respect the laws of the community—laws that gave us space to disagree about some very fundamental things. That allowed us to put the wars of the Reformation in the rearview mirror. In short, religious liberty and religious diversity allowed America to practice safe sects.

From the perspective of our official civil rights ideology, there ought to be no escape for insular minorities by creating small or closely held businesses, or educational institutions. The trouble is that forced actions and speeches are themselves tyrannical.

To be sure, a country, even a large, diverse, federal republic, can only allow so much diversity on moral questions and still function as a country. But America has, for most of our history, allowed what other countries would regard as an excessive amount of religious and moral disagreement.

From the start, however, America has also had those who regard the “Enlightened” or what would come to be called the “liberal” point of view to be the official one: Religion, in this view, is the way of a benighted past, as America moves into a more rational future. Toleration means that one must actively support opinions that represent progress. It affirms certain doctrines and groups that present themselves in opposition to the old ways. Hence Christians, and traditional Jews and Muslims for that matter, have moral beliefs that are themselves “intolerant” according to our governing institutions. Toleration entails progress toward an America where those groups shed such beliefs, and do so in the name of toleration.

In the past sixty or so years, this progressive view has gained a degree of federal power it used to lack. Before 1964, most businesses, other than monopolistic ones, and a few other limited classes of businesses, were free to decide whom to serve and to reject as customers and who to hire. The trouble was that Jim Crow, a legal regime that was fundamentally anti-liberal as it did not merely allow but required businesses to discriminate, had supported a culture of gross racial discrimination across the board. To combat that, the government essentially turned almost all private businesses into semi-public ones that lost their privacy in that they could not choose whom to associate with and on what conditions.

The troubles here are twofold: we have applied the lesson we learned in the fight against Jim Crow to matters of sex and sexuality—questions that, as far as I know, all religions address by creating rules, customs, taboos, and/or other like things. From an Aristotelian perspective, that might suggest they are religious questions by nature. It is likely that the concatenation of ideas we call “woke” would look much less like a religion (as some are, not unreasonably, calling it) were it only about race, and not also about sex and sexuality. On the other side, historically speaking, terms like “race,” “nation,” “people,” and “tribe” are difficult to disentangle. “Race” as a biological construct is historically unusual, and, in our discourse, no longer seems to be the dominant idea.

At the same time, we try to treat issues of sexuality as if they are issues of race, we do not exempt even small businesses, like Phillips’ little bakeshop, from the anti-discrimination regime. The result is that we are in danger of embracing a norm of forced association, speech, and performance, the very things that point us back to the wars of the Reformation. From the perspective of our official civil rights ideology, there ought to be no escape for insular minorities by creating small or closely held businesses, or educational institutions. The trouble is that forced actions, like forced speech, are tyrannical.

It is worth remembering here our terms “economy” and “economics” have their root in the Greek word for household economy and the management of private property. As the household economy and management of private property grow outward, government regulation becomes involved. In other words, it is a mistake to regard economic activity as fundamentally public. Perhaps for a plantation owner in the South, liberty was fundamentally non-economic about what one did off the work of others to provide food, shelter, and other necessities. But in the North, working to provide those goods was an essential part of liberty. Hence it entailed the liberty to decide whom to work with or whom to serve in the vast majority of cases.

Jim Crow was a set of laws that blocked that. It forced Americans to discriminate on the basis of race in their private businesses and in government. In reaction to that, our law forced Americans not to discriminate on the basis of race in our business lives. That’s to the good. Can we apply the same to sexual norms? If and only if we forget that antidiscrimination law also applies to religion. Unless the longstanding teachings regarding sex and sexuality in Judaism, Christianity, and Islam, among others, are soon going to be held only by a small insular rump of these faiths (think of the Amish), to apply the methods our federal, state, and local governments employed against Jim Crow to what is, fundamentally, a religious fight over what it means to be human is a recipe for religious war.